War crimes next October surprise?

It’s early October 2008, and Democratic nominee Barack Obama maintains a steady lead in the presidential race, although Republican standard-bearer John McCain, the most dogged campaigner in American politics, remains within striking range.

Suddenly, something happens overseas that throws the presidential campaigns off the TV screens entirely: Former Defense Secretary Donald Rumsfeld, on vacation in Italy, is arrested and brought to The Hague to face war crimes charges.

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Presidential campaigns try to prepare for these “October surprises,” late-breaking events and crises that can radically alter the race for the White House, such as the attack on the USS Cole in October 2000. But now there’s a new element in the mix, something presidential campaigns have never had to plan for. What if the October surprise is the greatest legal conflict between America and Europe since the creation of the Atlantic alliance?

Don’t think it can’t happen. I think the arrest abroad of an American is only a matter of time and, between now and November, is at least as likely as another terrorist attack on U.S. soil. As a former Marine Corps Commandant, Gen. Paul X. Kelley, reminded the nation in a July 2007 Washington Post op-ed, written with a University of Virginia law professor: “Violations of Common Article 3 are ‘war crimes’ for which everyone involved — potentially up to and including the president of the United States — may be tried in any of the other 193 countries that are parties to the conventions.”

Courts in Italy and Germany already have issued warrants demanding the arrest of CIA operatives for illegally kidnapping and allegedly torturing citizens and residents of their nations. More than 30 U.S. citizens have been named, their CIA covers blown. These warrants have not been executed, primarily for diplomatic reasons. But they could be acted upon rapidly with a simple decision by either government. And other names — of those directly involved in “enhanced interrogation techniques” — are starting to emerge overseas.

Former high-ranking government officials might want to also think twice about traveling to Europe this summer. Just this week, new evidence emerged that waterboarding and other blatant methods of torture were specifically and directly authorized in White House meetings. Anyone present is now potentially culpable before an international court.

As former Attorney General John Ashcroft is reported to have presciently said at one such meeting: “Why are we talking about this in the White House? History will not judge this kindly.”